150 F. Supp. 3d 910
N.D. Ill.2015Background
- Leibundguth Storage & Van Service operates from a building in Downers Grove with multiple wall signs (including two painted directly on brick), totaling over 500 sq. ft.; one large painted sign faces Metra commuter rail and is not visible to drivers.
- Downers Grove amended its Sign Ordinance (Article 9) to: ban painted wall signs; cap total sign area per lot (1.5 sq. ft. per linear foot of frontage, max 300 sq. ft.); and limit wall signs to one per tenant frontage facing a roadway or drivable right-of-way.
- Leibundguth sought a variance and was denied; it then sued claiming First and Fourteenth Amendment and Illinois constitutional violations (content-based regulation, lack of tailoring), seeking declaratory/injunctive relief and nominal damages.
- The Village later amended the ordinance to allow one additional wall sign for lots with BNSF railroad frontage (addressing the railroad-facing issue); the Village agreed not to enforce fines during litigation and moved for summary judgment; plaintiff cross-moved.
- The district court evaluated: (1) painted-wall ban as a time/place/manner restriction (content-neutral) and (2) size/number limits on commercial signs under Central Hudson intermediate scrutiny.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of painted-wall sign ban (§ 9.020(P)) | Ban is not narrowly tailored to aesthetics or safety; violates First Amendment. | Ban is content-neutral time/place/manner regulation advancing aesthetic interests and leaves ample alternatives. | Upheld: content-neutral; narrowly tailored to aesthetics; leaves ample alternative channels — constitutional. |
| Railroad-facing wall sign restriction (§ 9.050(C)) | Prohibiting signs facing the Metra unlawfully restricts speech (as-applied). | Village amended ordinance to permit one railroad-facing sign per frontage, mooting the claim. | Moot: amendment remedied the alleged defect; claim for declaratory/injunctive relief dismissed as moot (nominal damages also moot given no enforcement). |
| Size and number limits on commercial signs (§ 9.050(A), (C)) — as-applied | Limits on total area/number are not justified, not narrowly tailored, impede commercial speech. | Limits regulate commercial speech and survive Central Hudson: substantial interests (aesthetics & safety), directly advance aesthetics, reasonably tailored. | Upheld as-applied: restrictions governed by Central Hudson; traffic-safety justification weak, but aesthetics suffices; fit between means and ends acceptable. |
| Facial/overbreadth challenge to size/number limits (content-based via § 9.030 exemptions) | Ordinance’s content-based exemptions (§ 9.030) render size/number rules subject to strict scrutiny and facially invalid. | § 9.050 applies only to commercial speech; plaintiff cannot invoke overbreadth to attack provisions that don’t apply to it. | Rejected: overbreadth not available because § 9.050 regulates commercial speech only; facial challenge fails. |
Key Cases Cited
- City of Ladue v. Gilleo, 512 U.S. 43 (1994) (signs are protected speech but municipalities may regulate physical characteristics)
- Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) (time, place, and manner test requirements)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (narrow tailoring standard for time/place/manner restrictions)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (facial content-based distinctions require strict scrutiny)
- Central Hudson Gas & Elec. Corp. v. Public Svc. Comm’n, 447 U.S. 557 (1980) (intermediate scrutiny test for commercial speech)
- Edenfield v. Fane, 507 U.S. 761 (1993) (government must show regulation directly advances substantial interest; no mere speculation)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (aesthetics and traffic safety are substantial governmental interests)
- Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (municipal interest in aesthetics supports regulation of signage)